Woolsey v. Henke, 125 Wis. 134.

offered, over objection, that no partnership existed between said parties prior to September 1, 1900. The court held that by the pleadings the existence of a partnership on the 10th day of July, 1900, only, was established, and found that by the evidence the nonexistence of said partnership at the time of the execution of the lease was proved, and accordingly decided that the complaint must be dismissed, the defendant Henke not having been served with process and no liability being established against the other defendants. From judgment accordingly plaintiff appeals.

For the appellant the cause was submitted on the brief of A. J. Kinney, and for the respondents on that of Baker & Haven.

DODGE, J. The statute (sec. 4197, Stats. 1898) raises the irrebuttable presumption that the allegations are true whenever the pleadings allege "that the plaintiff or defendant or third persons were partners at any particular time." The complaint in question alleges that the defendants were partners "at all the times hereinafter mentioned." It then proceeds to mention a leasing on the 10th day of July, 1900, a taking possession by the defendants pursuant to said lease, and an occupation by them until twenty-eight months of rent had been earned. We cannot agree with the trial court that the only particular time at which partnership is alleged is July 10, 1900. That is the time alleged for the making of the lease, but the allegation of partnership is clearly not confined thereto, for it extends to all of the times thereafter mentioned. We think there can be no doubt that defendants were notified, by any reasonable construction of this complaint, that plaintiff claimed them to be associated in partnership from the 10th day of July up to the time for which the rent was demanded. Pleadings are to be construed liberally in the interest of justice, and, in the absence of apparent evasion or misleading, should be deemed to allege all that of

Woolsey v. Henke, 125 Wis. 134.

which they may reasonably be supposed to convey notice to the opposite party. This statute has already been accorded such liberality of construction as not to require a specification by days and dates of all the times at which it shall be deemed to allege partnership. Cooper v. Blood, 2 Wis. 62. The fact of partnership, then, during all of the time involved in the earning of the rent claimed, having been alleged by the plaintiff and not denied in the manner required by sec. 4197, Stats. 1898, must be taken to exist. Upon this, added to the further facts found by the court, that the defendant Henke, as manager of that partnership, made the lease in question, and that the defendants have failed to pay the sum of $80 of rent earned thereon, plaintiff is entitled to judgment for that sum, together with interest from November 10, 1902, the time at which it would have been due under the terms of the lease.

The respondents urge, as an obstacle to this conclusion, that there is no finding of fact that Henke had any authority, as a partner, to bind the firm to the making of a lease. The evidence is uncontradicted that the business involved was the editing and publishing of a local newspaper. We have no hesitation in holding that the leasing of premises in which to conduct it is within the general scope of such a business, and hence that there exists prima facie authority in a partner to bind the firm therefor. Stillman v. Harvey, 47 Conn. 26; Seaman v. Ascherman, 57 Wis. 547, 15 N. W. 788. Besides this, however, it is established that the premises were occupied for the purposes of the business, and it is conceded that after about September 1st a partnership for the publication of said paper did exist.

Another contention against respondents' liability is that the lease, a sealed instrument, was signed, not in the name of the firm, but by Henke in his own name. The presence of a seal is immaterial, for it was wholly unnecessary. The lease, therefore, stands upon the same footing as any other

4

St. Paul Boom Co. v. Kemp, 125 Wis. 138.

nonspecialty written contract. Stowell v. Eldred, 39 Wis. 614; Kirschbon v. Bonzel, 67 Wis. 178, 29 N. W. 907; Northern Nat. Bank v. Lewis, 78 Wis. 475, 481, 47 N. W. 834. The fact that it was made on behalf of the partnership was open to extrinsic proof, although signed in the name of one partner. The instrument itself declares that Henke acted therein as manager for the Baldwin Publishing Company, and the court finds "that the property was leased to him in that capacity." The evidence of the plaintiff that it was leased and occupied for the business of that concern, consisting of the defendants here named as partners, is undisputed. We can entertain no doubt that the fact that the lease was made for the benefit of the partnership, and not for Henke individually, was established without contradiction. We therefore find nothing which can avert the conclusion, above stated, that upon the pleadings and evidence the plaintiff was entitled to judgment.

By the Court.-Judgment reversed, and cause remanded with directions to enter judgment in accordance with the prayer of the complaint.

ST. PAUL BOOM COMPANY, Respondent, vs. KEMP, Appellant.

April 8-May 2, 1905.

Replevin: Logs and timber: Memoranda: Witnesses: Examination: Competency: Nonsuit: Evidence: Special verdict: Changing answers by court: Wilful intermingling of lumber: Apportionment: Damages: Printed case: Costs.

1. In an action to recover logs and lumber manufactured therefrom, one of plaintiff's witnesses testified that he made memoranda of log marks, as he found them on the logs, in a note book which he produced. The witness's statement was evidently an assertion that he made the entries and that they were correctly

St. Paul Boom Co. v. Kemp, 125 Wis. 138.

made. Held, that it was proper to permit the witness, while testifying, to read from the entries made by him.

2. Where a witness was shown to have been employed in plaintiff's logging business for a number of years, to have learned the general market value of pine lumber, and, prior to testifying, to have learned of market values from reported prices and from sales made by him, it is not error to permit him to give his opinion as to the market value of pine logs sought to be recovered in a replevin action.

3. In an action where the ownership of certain marked logs and lumber sawed therefrom was in controversy, a witness who had personal knowledge that the log marks testified to by him had been and were in fact used by various parties doing a logging business upon the Mississippi river, from which river the logs in question were obtained by defendant, could testify concerning the filing of log marks under the laws of the state of Minnesota, the custom of boom companies in handling stray logs, and as to his knowledge of the ownership of the logs bearing such marks, for the purpose of identifying and showing ownership of the logs in question, without first showing that such log marks were recorded under a Minnesota statute, requiring a person cutting logs to cause a copy of his adopted log mark to be recorded before marking them.

4. In an action of replevin for certain logs and lumber sawed therefrom, the facts and circumstances, stated in the opinion, are held to furnish sufficient ground for denying a motion for a nonsuit.

5. In an action of replevin for logs and lumber sawed therefrom, the jury found, in answer to a question of the special verdict, that the defendant had not wilfully and indiscriminately intermixed these with his own logs and lumber so that they could not be distinguished from his own property. Under the evidence, stated in the opinion, it is held that there was no basis for such answer, and that the trial court was justified in changing the answer to the question.

6. In an action of replevin for logs and lumber sawed therefrom, the finding of the jury was to the effect that the total value of the logs was $120; that the value of the unsawed logs was $30, and that the amount of lumber manufactured therefrom, amounting to 6,000 feet, was indiscriminately and wilfully intermingled by defendant with other lumber owned by him of similar description, quality, and value. The officer under the writ levied upon the unsawed logs and about 20,000 feet of lumber, and the judgment awarded the whole amount levied upon to the plaintiff. Held error, since the plaintiff was only enti

St. Paul Boom Co. v. Kemp, 125 Wis. 138.

tled to the logs seized, its full proportion out of the entire quantity of lumber seized and the costs of the action, and the defendant was entitled to the return of the excess of the lumber so seized, or, if the lumber could not be returned, to its value, without any damages for the seizure of such excess under the writ.

7. A printed case which contains duplication of record matters, and fails to abridge the record to the extent necessary for the proper presentation of the questions before the court, fails to comply with Supreme Court Rule VIII, and for those reasons the amount of taxable costs was limited.

APPEAL from a judgment of the circuit court for Pierce County: JAMES O'NEILL, Judge. Reversed.

Action of replevin to recover pine lumber and logs. It appears that plaintiff, a corporation, maintains a boom and rafting works in the Mississippi river below Fort Snelling, Minnesota, and makes a business of gathering stray logs in the river, holding them, and accounting for them to the various owners, under an agreement with them. It had been so engaged for a number of years prior to the time in question. On May 12, 1902, plaintiff's employees had gathered sixty-three pine logs which had escaped from its boom and were floating in the river; they had brailed and landed these logs on the north side of the river, about four and a half miles above Prescott, Wisconsin, where two of plaintiff's employees-Murray and Knippenberger-held them in their custody. While they so held them, one James Hackett dispossessed them of this brail of logs, floated them down the river to defendant's mill, and sold them to him for $19.50. Defendant sawed about three quarters of the logs into lumber, and piled it, with other lumber, in his yard. The officer recovered some of the unsawed logs, and took about 20,000 feet of lumber from piles in defendant's yard containing some of the lumber sawed out of these logs. From the jury's findings it appears that the logs so sawed yielded about 6,000 feet of lumber; that defendant had been informed that the logs had been taken from plaintiff by Hackett, and that he had wrongfully taken them;